Bragallot wrote:As for the copyright, unless it's blatantly obvious I think the judge will usually decide against anyone trying to copyright a Lego design because if I were a judge, I wouldn't want to encourage law suits being made over irrelevant shit, and I wouldn't want to deny an entire generation and everyone past that point the 'right' to come up with the same design by themselves (which, with Lego, is very well possible because of the amount of people building and the limited amount of parts / options).

You realize that's not a judge's job, right? If you follow copyright cases in the real world rather than in your imagination you'll find that things work a lot differently than you think they do.

Bragallot wrote:Take my rifle design:

What are the odds of someone, at some point, putting exactly the same parts together? I'd say it's possible.

As the defendant, I would probably be able to find a similar, older design than his, of a person who isn't making trouble over it, thus refuting his point that he was 'first'. It doesn't even matter if he was aware of it, since he 'could be'. Otherwise you could bring copyright down to the smallest portion of your design ('I'm the first guy to flip visors around on helmets!'). Moving myself to the position of the judge, I'd be thinking 'Is this what it's come to? I studied for this? Let's put a stop to this by denying this guy's claim.' I'm not saying these laws don't exist, I'm saying 'he'd have a very hard time to prove it'. Just look at how much trouble even actual companies have to prove something when it's a clear steal: http://articles.latimes.com/2012/sep/07 ... s-20120907

If you can find an older design exhibiting the points of identity under contention then you're done. You don't have to theorize about whether anybody "could have" seen it or not. If the guy claiming copyright isn't the first one to have done it, then he doesn't get the copyright. But these soldiers are a dumb example in any case because even an exact duplicate would fail the test of "substantial similarity." These soldiers have zero substantially original features, so there's no basis on which to build a copyright claim in the first place. Even if you did try to claim the particular rifle construction and no one could find a prior example, the "ordinary reasonable observer" test would still quickly eliminate any idea that this counted as a substantial feature.

Now an AC, on the other hand, is a very specific expression. If somebody duplicated that, no "ordinary reasonable observer" could think it was a coincidence.

The most important thing, though, is that if the judge makes decisions based on "is this what it's come to," then he can no longer serve as a judge. The judge's one job is to make sure decisions are made on the basis of legal procedure and not on somebody's opinion about the way things "should" be, especially his own.

My lawyer friends are laughing at me right now because I'm trying to explain your ideas about copyrights to them and they don't believe me.

I'm not the one picking your friends, you don't have to complain to me about it. You're either worse at making the point than I am, passing on what I'm saying in a manner that makes their reaction very predictable (this seems like the most likely option), or your friends are just as good at interpreting what I'm saying as yourself. For one thing, you keep mistaking 'it'd be very difficult to prove that' for 'it would be impossible to prove that / there are no legal ways to prove that...' (which, as it turns out, is not what I am saying, and probably this wrong interpretation is what gets you and your friends (if they exist) confused. It's kind of sad that you're laughing about something you interpreted wrongly yourself. Have fun though.).

If you can find an older design exhibiting the points of identity under contention then you're done. You don't have to theorize about whether anybody "could have" seen it or not. If the guy claiming copyright isn't the first one to have done it, then he doesn't get the copyright.

That's exactly what I was saying, and you did say it's important that the subject in question was visible to the public somewhere. You'd also have trouble proving you were first in the first place if it wasn't.

The point I'm making is that when it's the judge's call whether or not there is enough similarity - and it is the judge's call if it's not a 100 percent copy, where you can argue about it, and which is a prerequisite to the point I'm making - he will make his judgement based on personal considerations. The first judge in the case I linked claimed 'you cannot own copyright to a colour' while the next one said it was a 'trademark' of the brand and did consider it something that could be copyrighted. So same case, different opinions -> different personal considerations and opinions from the judges' side, too.

Louboutin did sort of win the case because she had the legal means to do so, but it wasn't easy. See how that reflects on my point?

The soldiers weren't the example. The exact same soldiers with the exact same rifles though, could be interpreted as a very unlikely coincidence.

An Armoured Core design could arguably be a design originally belonging to the Gundam franchise.

It's very naive of you to think judges do perfectly what they're expected to and all act the same or would make the exact same decisions in the same situations, like they're some kind of robots without personal thoughts or opinions. Theoretically, they probably should, but in reality, we often see this isn't the case. You do remember that judge who gave a guy a bigger fine because he was driving a Bentley? That's interpretation. They do not just act by the law, their own interpretation also counts. That's why they're called 'judges', because they 'judge'. The article I linked is evidence enough that even in serious cases, interpretations can vary from judge to judge, based on the quality of the defense, the judge, and many other factors.

Bragallot wrote:I'm not the one picking your friends, you don't have to complain to me about it. You're either worse at making the point than I am, passing on what I'm saying in a manner that makes their reaction very predictable (this seems like the most likely option), or your friends are just as good at interpreting what I'm saying as yourself.

Everyone who works in the field can't believe that you hold the opinions that you state. I don't feel like there's much more argument to be made. Although I do have to quote this part again:

Bragallot wrote:the next one said it was a 'trademark' of the brand and did consider it something that could be copyrighted.

Really? That's what you got out of the article? Copyrights and trademarks have nothing to do with each other. (a) The color can't be copyrighted, but (b) it is subject to trademark protection. There's no dispute.

Look. Have you ever been involved in IP work in any way - I mean. Never mind. You just sent me a trademark case in an argument about copyright. I can't even figure out where you think I made an error because the things you are saying bear so little relation to the way things actually work that I can't even address them.

That's easy, innit? The only thing I said was that it'd be difficult (which you interpreted as 'impossible' / 'not legally possible') to prove someone copied something off you in cases where someone didn't copy it completely. Since we were (originally) talking about Lego designs, there is the possibility this could happen, either on purpose, or accidentally. Despite the difference between the two cases, you're still trying to convince a judge someone saw what you did and copied it, and in most cases, it'll be his (in some cases subjective) call whether or not you're right. You just had to turn it into something much larger and take certain things that weren't meant to be taken all that seriously seriously (which is pretty different from your usual attitude and what you're expecting on this board, I might add) and felt so attacked by them (why? I don't know. Perhaps you thought I was looking for a serious debate from the get go?) that you had to forward them to lawyers to feel better about yourself again, or just think about it as a clever way to say 'look, you're stupid', or troll me. We both know I'm not stupid, and I'm not angry either, so you might as well drop that idea.

I can't even figure out where you think I made an error because the things you are saying bear so little relation to the way things actually work that I can't even address them.

For one thing, you're saying this while the Bentley example (a clear case where the outcome is influenced by the judge rather than just the legal standards) is taken from real life.

There's also this:

As the defendant, I would probably be able to find a similar, older design than his, of a person who isn't making trouble over it, thus refuting his point that he was 'first'.

I said this to show another roadblock in the way of trying to copyright your Lego creation (read: something that would make it difficult). You could think you were first, but could you be sure? Did you see all the MOCs anyone ever made before you? Because of the huge mass of Lego creations that have already been made, this could be a serious roadblock. Later you basically said yourself that if you can prove the one claiming copyright wasn't first, he can't claim copyright. How is this not in touch with reality if we're basically saying the same thing?

By missing things like this and only focusing on the negative, you really make me doubt your motivation.

@ lorbaat: I tried samurai and Euro armor on them to make his body look bigger, I wasn't very happy with either... Maybe the Space Ork armour could work though.

Last edited by Bragallot on Thu Feb 28, 2013 6:09 pm, edited 5 times in total.

Bragallot wrote:That's easy, innit? The only thing I said was that it'd be difficult (which you interpreted as 'impossible' / 'not legally possible') to prove someone copied something off you in cases where someone didn't copy it completely. Since we were (originally) talking about Lego designs, there is the possibility this could happen, either on purpose, or accidentally. Despite the difference between the two cases, you're still trying to convince a judge someone saw what you did and copied it, and in most cases, it'll be his (in some cases subjective) call whether or not you're right. You just had to turn it into something much larger and take certain things that weren't meant to be taken all that seriously seriously (which is pretty different from your usual attitude and what you're expecting on this board, I might add) and felt so attacked by them (why? I don't know. Perhaps you thought I was looking for a serious debate from the get go?) that you had to forward them to lawyers to feel better about yourself again, or just think it as a clever way to say 'look, you're stupid'. We both know I'm not stupid, so you might as well drop that idea.

I can't even figure out where you think I made an error because the things you are saying bear so little relation to the way things actually work that I can't even address them.

For one thing, you're saying this while the Bentley example (a clear case where the outcome is influenced by the judge rather than just the legal standards) is taken from real life.

@ lorbaat: I tried samurai and Euro armor on them to make his body look bigger, I wasn't very happy with either... Maybe the Space Ork armour could work though.

You realize of course that if you post a picture of that parts combination, I will sue your pants off.

Bragallot wrote:Despite the difference between the two cases, you're still trying to convince a judge someone saw what you did and copied it, and in most cases, it'll be his (in some cases subjective) call whether or not you're right.

All right, now I see the misunderstanding.

For copyright law you only have to prove that you hold the copyright, that it was not impossible for him to have seen your work, and that his work infringes.

Convincing the judge that intentional copying took place is not a part of a copyright case. That's criminal law, not tort law. I'm not saying that it's difficult or it's impossible, I'm saying it's not something that matters. It's not part of the copyright process.

Bragallot wrote:For one thing, you're saying this while the Bentley example (a clear case where the outcome is influenced by the judge rather than just the legal standards) is taken from real life.

The Bentley example is the judge doing what he's supposed to. Once the arguments are over and the verdict rendered, sentencing and damages are where he gets to be as subjective as he wants (within certain limits set by the law), according to whatever he feels is appropriate. If he wants to punish you a greater or lesser amount because he thinks you're a jerk or because he doesn't like your haircut or whatever, that's his time to shine.

In that case, it's semi-reasonable to think that a smaller fine would not mean as much to a guy with a Bentley, and you know what? The judge is completely within his rights to make that call.

Of course he is, but it's likely not every judge thinks about it that way. My point is simply that different judges can make different calls (imagine if the judge was driving a Bentley himself, he might be less likely (though even this isn't certain) to raise the fine because the other guy was driving a Bentley).

I brought it up because the phrase 'a normal person has to be able to tell it infringes' seems like a subjective call to make, not something the law can simply rate objectively in every case. Every study of human behaviour will tell you that almost all of us see things differently. Depending on our knowledge of Lego (or lack thereof), we could see the differences in construction techniques, or not see them at all. When I post a Microspace ship on here, for example, most people will be able to tell it's a Microspace ship. Other people, however, don't realize what it's meant to represent, to quote my sister (who cleaned up a Microspace battlefield once): 'I thought it was just a pile.'

If I were to make an exact replica of the AC and that became a case, then there's no question and everyone could see I copied it. The same thing can be said for an (almost) identical replica of a painting. The difficulty with Lego is however, that there's various ways to do things and you could or could not vary your own design enough to avoid infringing the design that inspired you (or the similar design you're not even aware of), and I was talking about MOCs that might have somewhat similar designs, but are still different.

One example I could give that we all know are all the Prowler tanks and its variants. If you put them next to each other a trained eye might see the similarities, though these can be eliminated by using different threads and altogether different techniques. It's not that easy to tell whether it infringes on the original design. For one, it could be very difficult for a judge to tell whether or not it infringes, because he has no knowledge of Lego (unless perhaps he turns out to be one of your lawyer friends). He could say 'it looks similar' while different techniques for balancing were used etc., or he could give the defendant the benefit of the doubt, or choose not to. In this case, he has no manual that gives him a spot on answer whether it infringes or not. Then there's the thing with the amount of MOCs that already exist I quoted again. When we're talking AC's, the more limited number of creations this size you'll find might make it less likely you'll find one similar enough to convince the judge the person claiming copyright wasn't first, but I do not think that was the kind of creation Zahru was referring to.

Bragallot wrote:Of course he is, but it's likely not every judge thinks about it that way. My point is simply that different judges can make different calls (imagine if the judge was driving a Bentley himself, he might be less likely (though even this isn't certain) to raise the fine because the other guy was driving a Bentley).

Right. Every judge makes different calls in regards to damages. That's the job description. For everything else, they work very hard to stick to precedent, evidence, and expert testimony, because otherwise they'll get struck down in appellate court and may end up subject to censure.

Bragallot wrote:I brought it up because the phrase 'a normal person has to be able to tell it infringes' seems like a subjective call to make, not something the law can simply rate objectively.

The "normal rational person" is not just "some typical dude off the street," there's a lot of legal definition that goes into that generic-sounding phrase. It's someone who represents the informed opinion of the community to which the copyright is relevant. So while there is subjectivity involved, it's not the judge's subjectivity, it's that of the expert witnesses that both sides are bringing in. In this case, they would be bringing in Lego master builders and so forth - people with professional credentials or who were recognized experts in the Lego building field. They'd get their opinions on record about whether the significant features are really significant (which has its own legal specifications), and then make their arguments from there.

Bragallot wrote:If I were to make an exact replica of the AC and that became a case, then there's no question and everyone could see I copied it. The same thing can be said for an (almost) identical replica of a painting. The difficulty with Lego is however, that there's various ways to do things and you could or could not, and I was talking about MOCs that might have somewhat similar designs, but are still different. One example I could give that we all know are all the Prowler tanks and its variants. If you put them next to each other a trained eye might see the similarities, though these can be eliminated by using different threads and altogether different techniques. It's not that easy to tell whether it infringes on the original design.

This is why the significant features are enumerated and checked off one by one, rather than just giving a feeling like "well this seems like a 74% copy" or something. Did this AC variant use clock gears in this specific way in the hips? Yes. Are clock gear hips a protectable element of the AC design, or is that a common technique among large mech builders ("scènes à faire," which sucks because it's French instead of Latin the way good legal phrases are supposed to be)? Well, let's ask our expert witness. Etc.

Bragallot wrote:Then there's the thing with the amount of MOCs that already exist I quoted again. When we're talking AC's, the more limited number of creations this size you'll find might make it less likely you'll find one similar enough to convince the judge the person claiming copyright wasn't first, but I do not think that was the kind of creation Zahru was referring to.

That's not a subjective call either - the burden of proof is on the defense. They can either find a pre-existing example or they can't. There is no "it almost certainly is out there somewhere." Even if there are thousands of earlier MOC robots with clock gear hips, if they don't present one then it doesn't exist as far as the case is concerned.

Bragallot wrote:When we're talking AC's, the more limited number of creations this size you'll find might make it less likely you'll find one similar enough to convince the judge the person claiming copyright wasn't first, but I do not think that was the kind of creation Zahru was referring to.

Wait, I thought his post was about the AC specifically? Did I understand wrong, or am I thinking of a different post? What other MOC besides the AC were we talking about that has people "charging money for MOC instructions?"

Of course the defense has to find it themselves, but if there's a lot of them around, that would make it easier to find one. Since at this very moment a bunch of people around the world are probably piecing together MOCs, statistically the chances of someone beating you to a certain construction technique are always increasing. That's what I'm saying.

Since it's Lego, you could even take it apart and say 'this technique (for the arms) was used here, in this (different) creation, so you didn't come up with it first', which would make finding examples of techniques that existed before easier, since you wouldn't have to find a completely similar creation.

I figured they'd be bringing in specialists (which is an added difficulty), but those specialists would still have to convince the judge. What if the specialists don't agree with one another, kinda like psychologists sometimes do when judging for instance a murderer? If they're really master builders, they might be more likely to have seen these techniques somewhere else before themselves already. Those are all possibilities, new roadblocks. And remember, we're talking about examples that aren't completely similar here, so the call whether or not the similarities / differences are sufficient is still a subjective one.

If we apply this to the prowler tank and all it's variants (forgetting for a second that the design was made available for the purpose of reproduction), for example, simply thinking about it makes you realize you could argue there's similarities in the design, but at the same time think it's not easy to judge whether some of these variants are sufficiently different not to infringe. Some people might (and probably) have designed them more similarly to the original than others. You could say 'the threads are the same, but pre-made tank threads aren't original enough to count as a copyrighted idea', or argue the chassis is the same, but the cannon isn't, in which case you might end up with a tank that has threads and a cannon, but no chassis. See, all things to consider that might or might not turn out in your favour based on human interpretation, which makes the outcome uncertain and thus difficult to attain.

What if your Lego tank is so well-built it infringes on the design of an existing, real-life tank?

Wait, I thought his post was about the AC specifically? Did I understand wrong, or am I thinking of a different post? What other MOC besides the AC were we talking about that has people "charging money for MOC instructions?"

I was using the AC mostly as an example, I'm thinking mostly along the lines of MOCs Zahru has done though, because he seemed to be saying he got ideas from watching other MOCs (like I usually do) without copying them completely, and I was trying to tell Zahru half-jokingly that he shouldn't be worried about making MOCs that are inspired by existing ones in the future.

The charging money for instructions thing is a whole different thing imo. I don't think there's anything wrong with that, 'cos at the end of the day, no one's forcing you to buy them and the instructions were probably made to be helpful, because most people couldn't figure out how to build that thing on their own.

Last edited by Bragallot on Thu Feb 28, 2013 7:57 pm, edited 5 times in total.